THE PLEDGE OF ALLEGIANCE: ONE NATION
UNDER GOD?
Linda P. McKenzie∗
I. INTRODUCTION
On June 26, 2002, Ninth Circuit Judge Alfred T. Goodwin, writing for the
majority, held that teachers cannot lead public elementary students in the Pledge of
Allegiance (“Pledge”).1 According to the three-judge panel, such conduct violates
the Establishment Clause of the First Amendment in two ways.2 First, the words
“under God” constitute religious speech, which public school teachers and other
state employees are prohibited from endorsing.3 Second, the 1954 Congressional
Act that inserted the words “under God” into the Pledge was itself
unconstitutional.4
The Ninth Circuit’s ruling was the end result of a complaint filed by Dr.
Michael A. Newdow, a forty-nine-year-old emergency room physician and
attorney,5 whose eight-year-old daughter attends an elementary school within the
Elk Grove Unified School District.6 Dr. Newdow brought suit in the United States
District Court for the Eastern District of California, challenging both the
constitutionality of the 1954 Act and the practice of public school teachers reciting
the Pledge in their classrooms.7 Newdow, a self-described “avowed atheist,”
specifically objected that his young child was required to listen each day as her
∗
J.D. Candidate, University of Arizona, James E. Rogers College of Law,
2004.
1.
Newdow v. U.S. Cong., 292 F.3d 597, 612 (9th Cir. 2002), pet. for reh’g en
banc denied, Feb. 28, 2003.
2.
Id.
3.
Id. at 605. “The Establishment Clause of the First Amendment states that
‘Congress shall make no law respecting an establishment of religion,’ U.S. Const. amend. I,
a provision that ‘the Fourteenth Amendment makes applicable with full force to the States
and their school districts.’” Id. (quoting Lee v. Weisman, 505 U.S. 577 (1992)).
4.
Id.
5.
Jennifer Garza, Dad Regards Pledge Case as His “Duty,” SACRAMENTO
BEE, July 16, 2002, at A1. Dr. Newdow was admitted to the State Bar of California on July
29, 2002. State Bar of California, Michael A. Newdow, at http://members.calbar.ca.gov/
search/member_detail.aspx?x=220444 (last visited Apr. 12, 2004).
6.
Newdow, 292 F.3d at 600; Garza, supra note 5.
7.
Newdow, 292 F.3d 597.
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[Vol. 46:379
teacher espoused a belief that is “completely antithetical and offensive” to his
religious philosophy.8 The district court rejected Newdow’s arguments and granted
the school district’s motion to dismiss.9 On appeal, however, the three-judge Ninth
Circuit panel reversed and remanded the case to the lower court.10
The Ninth Circuit’s decision generated intense public interest and debate.
In downtown Sacramento demonstrators surrounded the courthouse.11 Picketers
gathered outside the judges’ homes12 as a small plane flew overhead trailing a
banner that read “One Nation Under God.”13 Citizens United Foundation, a group
dedicated to advancing “traditional American values,”14 announced a petition drive
calling for the immediate retirement of Judge Goodwin and the impeachment of
Judge Stephen Reinhardt.15
Politicians wasted no time entering the fray. Senate Majority Leader Tom
Daschle labeled the ruling “just nuts.”16 To demonstrate government support of the
Pledge, he encouraged his colleagues to participate in a longstanding Senate
ritual—an opening prayer offered by the Senate Chaplain and group recitation of
the Pledge.17 Although many senators typically forgo the ceremony, after Senator
Daschle’s appeal the Senate chambers were filled to capacity.18 Senators stood
8.
Brief of the Plaintiff/Appellant at 7, Newdow v. U.S. Cong., 292 F.3d 597
(9th Cir. 2002) (No. 00-16423).
9.
See Newdow, 292 F.3d at 601.
10.
Id. at 612.
11.
Pledge of Allegiance Judges Facing Demonstrators at Courthouse, Plane
Trailing Banner, YORK NEWS-TIMES, July 18, 2002 [hereinafter Judges Facing
Demonstrators],
available
at
http://www.yorknewstimes.com/stories/071802/nat_
0718020031.shtml.
12.
Id.
13.
Id.
14.
Information about the Citizens United Foundation is available at the
Foundation’s website, at http://www.citizensunited.org/citizens_united_foundation.html.
Citizens United Foundation was established in 1992 as a non-partisan,
non-profit research and education foundation, under Section 501(c)(3) of
the Internal Revenue Code. CUF is dedicated to informing the American
people about public policy issues which relate to traditional American
values, including: the Constitution as the supreme limit on federal
power, a strong national defense as the primary role of the federal
government; free enterprise as the economic system that has enabled the
American people to attain and maintain an historically high standard of
living; belief in God and Judeo/Christian values as the fundamental
attribute of our way of life; and the recognition of the family as the basic
social unit of our society.
Id.
15.
Howard Fineman, One Nation, Under . . . Who?, NEWSWEEK, July 8, 2002, at
23.
16.
Jim Dallas, Defense of Pledge Wording Hypocritical, DAILY COLLEGIAN,
July 1, 2002, at 6 (discussing the reaction of Senate Majority Leader Tom Daschle, D.-S.D.,
to the Ninth Circuit’s decision).
17.
Fineman, supra note 15.
18.
Id.; see also Senators Call Pledge Decision ‘Stupid,’ at http://www.cnn.com/
2002/ALLPOLITICS/06/26/senate.resolution.pledge/index.html (last visited Apr. 12, 2004).
“At one point late Wednesday [June 26, 2002], about 100–150 House members, mostly
2004]
THE PLEDGE OF ALLEGIANCE
381
with hands over hearts and recited the Pledge of Allegiance, proudly proclaiming
ours to be “one nation, under God,” while cameras recorded the event for
television viewers.19
The day after the Ninth Circuit announced its decision, a group of thirtysix senators introduced Senate Bill 2690 “to reaffirm the reference to one Nation
under God in the Pledge of Allegiance.”20 In addition, two bills were introduced in
the House of Representatives: Resolution 459, which “[e]xpress[ed] the sense of
the House of Representatives that Newdow v. U.S. Congress was erroneously
decided,”21 and HR 5064, entitled the Pledge Protection Act of 2002, which
proposed to “amend title 28, United States Code, with respect to the jurisdiction of
Federal courts inferior to the Supreme Court over certain cases and controversies
involving the Pledge of Allegiance.”22 The Pledge Protection Act, although never
passed, proposed to prevent any court other than the U.S. Supreme Court from
hearing a challenge to the constitutionality of the Pledge of Allegiance.23
The legislative branch of government was not alone in its criticism of
Newdow. President George W. Bush called the ruling “ridiculous.” Attorney
General John Ashcroft announced that the government would join the Elk Grove
Republicans, gathered on the steps outside the Capitol and recited the Pledge of Allegiance
in a show of support.” Id.
19.
Fineman, supra note 15.
20.
S. 2690, 107th Cong. § 2 (2002) (enacted).
(a) REAFFIRMATION- Section 4 of Title 4, United States Code, is
amended to read as follows:
Sec. 4. Pledge of allegiance to the flag “I pledge allegiance to the
Flag of the United States of America, and to the Republic for which it
stands, one Nation under God, indivisible, with liberty and justice for
all.” . . . In codifying this subsection, the Office of the Law Revision
Council shall . . . show . . . that the 107th Congress reaffirmed the exact
language that has appeared in the Pledge for decades.
Id. S. 2690 passed 99-0. Senator Jesse Helms, R.-N.C., abstained due to illness. Byron
York, The Democrats’ Pledge Concession, NAT’L REV. ONLINE, June 28, 2002, available at
http://www.nationalreview.com/york/york062802.asp.
21.
H.R. Res. 459, 107th Cong. (2002), available at http://thomas.loc.gov/ (last
visited June 26, 2002).
22.
Pledge Protection Act of 2002, H.R. 5064, 107th Cong. § 1 (2002). Missouri
Republican W. Todd Akin introduced H.R. 5064 on July 8, 2002. The last major action
taken was on July 18, 2002, when H.R. 5064 was referred to the Subcommittee on the
Constitution. Thomas Legislative History on the Internet, at http://thomas.loc.gov/ (last
visited July 8, 2002). On May 8, 2003 Representative Akin introduced the same legislation
in H.R. 2028. Id. The last major action taken on H.R. 2028 was on June 25, 2003, when it
was referred to the House Subcommittee on the Constitution. Id.
23.
H.R. 5064 § 1.
Sec. 1632. Jurisdiction limitation
No court established by Act of Congress shall have jurisdiction to
hear or determine any claim that the recitation of the Pledge of
Allegiance, as set forth in section 4 of title 4, violates the first article of
amendment to the Constitution of the United States.
Id.
382
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[Vol. 46:379
School Board in its petition for a new hearing before an eleven-judge panel of the
Ninth Circuit.24
Seldom has a decision by a U.S. appellate court drawn so much attention
and sparked such intense debate among Americans.25 Citizens from all walks of
life weighed in on the issue in polls and on websites.26 A Newsweek survey taken
over a two day period immediately following the Ninth Circuit’s decision revealed
that between eighty-seven and eighty-nine percent of Americans support inclusion
of “under God” in the Pledge and eighty-four percent think references to God are
acceptable in schools, government buildings, and other public settings so long as
no specific religion is mentioned.27 Yet only twenty-nine percent of these same
individuals would classify the United States as a “Christian nation.”28
Proponents of the Pledge and other forms of “ceremonial deism”29
contend that the words “under God” should not offend Americans who do not
believe in God.30 They argue that these words have been stripped of religious
meaning by years of rote repetition, resulting in nothing more than a secular
patriotic exercise.31 Such an argument, however, begs the question of why
Americans are so opposed to removing the words “under God” and restoring the
Pledge to its pre-1954 form.
The judicial system has become the battleground upon which this conflict
in societal values will be resolved. Courts must interpret the parameters of the First
Amendment religion clauses and apply them to modern day problems. The
Founding Fathers placed utmost importance on the principle that government may
not establish, endorse, or promote religion.32 However, as the Newsweek poll
24.
Dallas, supra note 16.
25.
Judges Facing Demonstrators, supra note 11.
26.
See, e.g., Constitutional Americana, at http://groups.msn.com/Constitutional
Americana/messageboard.msnw (last visited Feb. 29, 2004).
27.
See Fineman, supra note 15.
28.
Id.
29.
See generally Steven B. Epstein, Rethinking the Constitutionality of
Ceremonial Deism, 96 COLUM. L. REV. 2083 (1996).
The phrase “ceremonial deism,” was coined by former Yale Law School
Dean Walter Rostow in a 1962 lecture he delivered at Brown University
. . . . Rostow reconciled the Establishment Clause with a “class of public
activity, which . . . c[ould] be accepted as so conventional and
uncontroversial as to be constitutional.” Rostow labeled this class of
public activity “ceremonial deism.”
Id. at 2091.
30.
Id. at 2092.
31.
Id.
32.
See e.g., JAMES A. HAUGHT, 2000 YEARS OF DISBELIEF 82 (1996) (quoting
Article 11 of the Treaty of Peace and Friendship Between the United States of America and
the Bey and Subjects of Tripoli of Barbary, January 3, 1797). President John Adams signed
and the U.S. Congress ratified the Treaty of Peace and Friendship, which states: “[T]he
government of the United States of America is not in any sense founded on the Christian
Religion.” Id. James Madison addressed the General Assembly of the Commonwealth of
VA, asking, “Who does not see that the same authority which can establish Christianity, in
exclusion of all other religions, may establish with the same ease any particular sect of
2004]
THE PLEDGE OF ALLEGIANCE
383
clearly indicates, Americans also value expressions of patriotism that have
developed through history, even though these expressions include religious
references.33
The Ninth Circuit was undoubtedly cognizant of the intense public debate
generated by Newdow when it considered whether to grant the government’s
motion for rehearing en banc. On February 28, 2003, the court nevertheless denied
the motion and ordered the Clerk “not to accept for filing any new petitions for
rehearing and petitions for rehearing en banc in this case.”34 The court took this
step, however, only after amending the initial opinion of the three-judge panel.35
The Ninth Circuit’s second opinion (“Newdow II”) held that the school district’s
policy violated the Establishment Clause,36 but declined to address the
constitutionality of the 1954 enactment adding “under God” to the Pledge.37 The
result of Newdow II is that the language of the Pledge remains intact, but recitation
of the Pledge is barred from public schools within the jurisdiction of the Ninth
Circuit. Ironically, if reciting the Pledge is forbidden in the classrooms of the
largest federal circuit, yet remains accepted practice throughout the rest of the
country, this expression of patriotism will have achieved a level of divisiveness
equal to the national unity anticipated and sought by its creators.
The current Pledge of Allegiance predicament is the direct result of the
U.S. Supreme Court’s failure to provide adequate direction to the lower courts for
determining whether a challenged government action violates the Establishment
Clause.38 In fact, the Court itself has applied no less than three different tests to
such challenges.39 The choice of which test to apply is further complicated by the
Christians, in exclusion of all other sects?” JAMES MADISON, MEMORIAL AND
REMONSTRANCE (1785); see also DANIEL L. DREISBACH, THOMAS JEFFERSON AND THE WALL
OF SEPARATION 1 (2002).
Believing with you that religion is a matter which lies solely between
man and his God, that he owes account to none other for his faith or his
worship, that the legislative powers of government reach actions only,
and not opinions, I contemplate with sovereign reverence that act of the
whole American people which declared that their legislature should
“make no law respecting an establishment of religion, or prohibiting the
free exercise thereof,” thus building a wall of separation between church
and State.
Id.
33.
See Fineman, supra note 15.
34.
Newdow v. U.S. Cong., 328 F.3d 466, 468 (9th Cir. 2003).
35.
Id. at 468.
36.
Id. at 490.
37.
Id.
38.
Ruth Marcus, Lawyers: A Small Gap in D.C., New York Salaries, WASH.
POST, June 23, 1986, at B2 (quoting Supreme Court Justice Antonin Scalia). Justice Scalia
recused himself and will not participate in the Newdow case. See Supreme Court of the
United States, Granted & Noted List—Cases to be Argued October Term 2003, at
http://www.supremecourtus.gov/orders/03grantednotedlist.html (last visited Apr. 12, 2004).
39.
See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); County of Allegheny
v. Am. Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lee v.
Weisman, 505 U.S. 577 (1992). The tests articulated by the Supreme Court in these three
384
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[Vol. 46:379
fact that the Court continues to develop new tests without specifically overruling
any of its prior Establishment Clause doctrines.40 As Justice Antonin Scalia
explained, “The fact is that Supreme Court jurisprudence concerning the
Establishment Clause in general . . . is in a state of utter chaos and unpredictable
change . . . .”41 This lack of guidance from the Supreme Court has created
confusion in the lower courts as to which test governs, resulting in contention
between appellate court judges and conflicting opinions from the circuit courts.42
Fortunately, the Supreme Court granted certiorari and heard arguments in
the Newdow case on March 24, 2004.43 The Court limited its inquiry to (1) whether
Dr. Newdow has standing to bring the action and (2) whether the school district’s
policy of requiring public elementary school teachers to lead their students in a
daily Pledge of Allegiance and flag salute ceremony violates the Establishment
Clause of the United States Constitution.44
This Note examines the history surrounding the introduction of the Pledge
into American culture, the 1954 Act adding “under God” to the Pledge, and the
Supreme Court cases that directly impact the present challenge to the Pledge in
public elementary schools. Part II analyzes the political climate at the time of the
Pledge’s conception and throughout its process of evolution. It also considers
public support for and opposition to the Pledge throughout its history. Part III
examines the analyses and holdings in prior Pledge challenges, as well as the
analogous cases in which the Supreme Court announced various “tests” to
determine whether a government action violates the Establishment Clause. Part IV
compares two circuit court opinions related to Pledge challenges: Sherman and
Newdow. Part V weighs the arguments for and against having public school
teachers lead students in the Pledge. Finally, Part VI considers the Supreme
Court’s alternatives and concludes that, under the Court’s current jurisprudence, a
teacher-led recitation of the current Pledge in public schools violates the
Establishment Clause.
cases have become known as, respectively: i) the three-prong Lemon test; ii) the
endorsement test; and iii) the coercion test. They will be discussed in detail infra.
40.
See, e.g., Lee, 505 U.S. at 587.
41.
Marcus, supra note 39.
42.
See Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).
But see Newdow, 328 F.3d 466.
43.
Newdow, 328 F.3d 466, cert. granted 124 S. Ct. 384 (2003).
44.
Newdow, 124 S. Ct. 384. In its Supreme Court brief, the United States argued
that Dr. Newdow lacked standing because he did not have primary custody of his daughter.
Brief for the United States as Respondent Supporting Petitioners, at 4, Elk Grove Unified
Sch. Dist. v. Newdow, 328 F.3d 466 (9th Cir. 2003) (No. 02-1624). However, the
government acknowledged that Dr. Newdow’s custody situation had recently improved,
noting that, “[a]t a hearing on September 11, 2003, the state court judge expanded
Newdow’s visitation time with the child and denominated the new arrangement ‘joint legal
custody.’” Id. n.4. The United States contended that this latest custody development was not
sufficient to give Newdow standing because his child’s mother still had the final say in
decisions concerning the child’s education, religious upbringing, and participation in
litigation. Id.
2004]
THE PLEDGE OF ALLEGIANCE
385
II. HISTORY OF THE PLEDGE
The Pledge of Allegiance and accompanying flag salute exercise is a
fairly new phenomenon in American culture. Nonetheless, pledging allegiance to
the flag has become routine in a variety of settings. Children often begin their
school day with flag exercises that include reciting the Pledge, and Congress opens
each session with the Pledge and a prayer. Yet the custom of pledging allegiance is
barely a century old.45
A. Late Nineteenth Century: Public Schools Introduce Patriotic Exercises
Schoolchildren did not participate in the daily salute to the flag and the
Pledge until around the turn of the twentieth century.46 Events in the nineteenth
century strongly influenced notions of nationalism and led to the development of
patriotic exercises, such as flying the flag and reciting the Pledge.47 The Civil War
had threatened to divide the union. In its aftermath Americans celebrated the U.S.
Centennial of 1875, an occasion marked by a desire to reunite and to begin the
healing process that would make the nation whole again.48
American immigration policy further contributed to the popularity of
patriotic expression.49 At the turn of the century the United States experienced a
tremendous influx of immigrants from eastern and southern Europe,50 prompting
citizen concern for the assimilation of foreigners into the American culture.51
Public schools had access to the children of immigrants and could provide
instruction in patriotism, thus many Americans saw schools as the logical place for
children to develop an appreciation of their country.52 Consequently, the U.S.
Commissioner of Education called upon educators to design programs for instilling
loyalty in students, particularly in children of immigrants.53 In 1887, Colonel
George T. Balch, Auditor of the Board of Education for New York City,
introduced patriotic exercises that included having the students recite an oath: “We
give our heads and our hearts to God and our country; one country, one language,
one flag.”54
45.
See Eugene F. Provenzo, Jr., Columbus and the Pledge, AM. SCH. BD. J.,
Oct. 1991, at 24.
46.
See Morris G. Sica, The School Flag Movement: Origin and Influence,
SOCIAL EDUC., Oct. 1990, at 380.
47.
See id.
48.
See id.
49.
See Provenzo, supra note 45, at 24.
50.
Previous immigrants hailed from Northern and Western Europe. The large
numbers arriving from other parts of Europe caused the American public some concern. Id.
51.
See id.; see also Cecilia O’Leary & Tony Platt, Pledging Allegiance Does
Not a Patriot Make, L.A TIMES, Nov. 25, 2001, at M6 (quoting Colonel Balch on the role of
public education of immigrant children, “His purpose, as he described it, was to instill
discipline and loyalty in what he called the ‘human scum, cast on our shores by the tidal
wave of a vast migration.’”).
52.
See Provenzo, supra note 45, at 24.
53.
See id.; see also Sica, supra note 46, at 380.
54.
Sica, supra note 46, at 380.
386
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[Vol. 46:379
Private groups joined rank with schools in an effort to encourage
patriotism.55 The Grand Army of the Republic, a group of Civil War veterans, took
an active role in encouraging schools to fly the flag.56 Aware of the fact that many
schools displayed the flag during the war but ceased doing so once the war ended,
these soldiers called for schools to fly the flag again.57 They further promoted
patriotism by donating flags to schools.58
In 1888, a Boston publication, Youth’s Companion, joined the Grand
Army of the Republic in providing flags to schools.59 The publication invited
schoolchildren to send for flag coupons, which they could sell for ten cents
apiece.60 After students sold ten dollars worth of coupons, Youth’s Companion
would send a nine by fifteen foot flag to the school.61 Through this program, the
publication distributed approximately 30,000 flags to schools during 1891.62
In 1892, Americans celebrated the 400th anniversary of Christopher
Columbus’s first voyage to the Americas. Promoters of school patriotic exercises
took this occasion to further their cause.63 Frances J. Bellamy, an editor at Youth’s
Companion and chair of the Department of Superintendence of the National
Education Association’s Executive Committee, planned a Columbus Day event for
school children across the country.64 The official program included speeches,
poetry readings, patriotic songs, and recitation of a pledge of allegiance written by
Bellamy.65 As the American flag was raised, each child extended his right hand,
palm upward, toward the flag and recited, “I pledge allegiance to my Flag and (to)
the Republic for which it stands: one Nation indivisible, with Liberty and Justice
for all.”66
After the celebration of 1892, many schools continued to make patriotic
exercises part of their daily routine.67 The Grand Army of the Republic
successfully lobbied for legislation that would require patriotic exercises in schools
and by 1895 ten states had passed mandatory school-flag laws.68 By 1935 most
states required public schools to conduct patriotic exercises.69
55.
Id. at 380–81.
56.
Id. at 380. “This organization of veterans of the Union military forces was
formed after the Civil War to influence politics and promote the welfare of former military
personnel.” Id. at 384.
57.
Id. at 380.
58.
Id.
59.
Id.
60.
Id.
61.
Id.
62.
Id.
63.
Id. at 381.
64.
Id.
65.
Id.
66.
See id.; see also John W. Baer, The Pledge of Allegiance—A Short History,
available at http://history.vineyard.net//pledge.htm (last visited Apr. 14, 2004).
67.
See Sica, supra note 46, at 381.
68.
See id. at 382.
69.
See id.
2004]
THE PLEDGE OF ALLEGIANCE
387
Bellamy’s original Pledge was modified twice during the 1920s.70 On
Flag Day in 1923, citizens gathered for the first National Flag Conference under
the leadership of the American Legion and the Daughters of the American
Revolution.71 Concern over the number of immigrants living in the United States
prompted those in attendance to modify the Pledge.72 “My Flag” was replaced with
“the Flag,” and “of the United States” was added.73 On June 14, 1924, at the
second Flag Conference, the words “of America” were added.74 “My Flag” had
evolved into “the Flag of the United States of America,” reflecting the social
values of the time.75 Thus, by 1924 the Pledge had become: “I pledge allegiance to
the flag of the United States of America and to the Republic for which it stands,
one Nation indivisible, with liberty and justice for all.”76
B. 1942: The Pledge of Allegiance Gains Formal Recognition
In 1942, Congress formally recognized the Pledge of Allegiance to the
Flag.77 The nation was entrenched in a bitter world war and the spirit of
nationalism prompted Congress “to codify and emphasize existing rules and
customs pertaining to the display and use of the flag of the United States of
America.”78 Congress passed legislation adopting the Pledge of Allegiance to the
Flag as the official U.S. Pledge and outlining the appropriate manner for its
recital.79
The original joint legislation, Public Law 623, outlined the proper stance
for citizens to assume while reciting the Pledge.80 The statute specified that the
70.
Baer, supra note 66.
71.
Id.
72.
Home of Heroes, The Pledge of Allegiance, at http://www.homeofheroes
.com/hallofheroes/1st_floor/flag/1bfc_pledge.html (last visited Apr. 14, 2004).
73.
Id.
74.
Id.
75.
See Provenzo, supra note 45, at 25.
76.
See id.
77.
Joint Resolution to Codify and Emphasize Existing Rules and Customs
Pertaining to Display and Use of the Flag of the United States of America, 77 Pub. L. 623,
§ 7, 56 Stat. 377 (1942). On June 22, 1942, the 77th Congress adopted the following
language:
That the pledge of allegiance to the flag, “I pledge allegiance to the Flag
of the United States of America and to the Republic for which it stands,
one Nation indivisible, with liberty and justice for all,” be rendered by
standing with the right hand over the heart; extending the right hand,
palm upward, toward the flag at the words “to the flag” and holding this
position until the end, when the hand drops to the side.
Id. In December 1942, Congress amended 77 Pub. L. No. 623, § 7, changing the salute to
the flag from the extended right hand to “standing with the right hand over the heart.”
Congress did not change the wording of the Pledge. 77 Pub. L. No. 829, 56 Stat. 1074
(1942).
78.
77 Pub. L. No. 623, § 7; see also Restore Our Pledge of Allegiance, History
of the Pledge of Allegiance, at http://www.restorethepledge.com/history.html (last visited
Mar. 17, 2004).
79.
77 Pub. L. No. 623, § 7.
80.
Id.
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Pledge, “be rendered by standing with the right hand over the heart; extending the
right hand, palm upward, toward the flag at the words ‘to the flag’ and holding this
position until the end, when the hand drops to the side.”81 The “stiff-arm salute”
drew public criticism from Americans who were concerned that it too closely
resembled the Nazi-Fascist salute.82 Congress acted quickly to correct this
problem, amending Public Law 623, Section 7 to require that the Pledge “be
rendered by standing with the right hand over the heart.”83
The text of the Pledge and the proper manner for reciting it changed
several times over the years. Initially, modifications were made by groups of
citizens participating in national flag conferences.84 After enacting legislation to
adopt the Pledge, however, Congress itself amended both the text of the Pledge
and the accompanying flag salute. In 1954, the salute and the Pledge would
undergo further alterations.
C. 1954: The Addition of “Under God” to the Pledge
By 1954, World War II was over, but the nation was in the midst of the
Cold War. The McCarthy-Army hearings were in full swing85 as the government
attempted to root out the evil influence of communism.86 America wanted to
distinguish democracy from its “godless, materialistic” enemy—communism.87
Senator Ralph E. Flanders, a republican from Vermont, proposed a Constitutional
Amendment declaring the nation’s belief in the authority and law of Jesus Christ
and its recognition of God as the source of the nation’s blessings.88
On February 7, 1954 in a Lincoln Day sermon, Reverend George M.
Docherty, pastor of the New York Avenue Presbyterian Church, admonished his
congregation about the absence of “God” from the nation’s Pledge, stating:
There is something missing in the pledge, [something that is] . . . the
characteristic and definitive factor in the American way of life.
81.
Id.
82.
See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 627–29 (1943).
83.
77 Pub. L. No. 829, § 7.
84.
See Provenzo, supra note 45, at 25.
85.
Proceedings in Washington, N.Y. TIMES, June 8, 1954, at 16 (describing the
activities of Congress on June 7, 1954: the Senate “Investigations [S]ubcommittee received
more monitored telephone conversations in Army-McCarthy dispute . . . . The House
[p]assed and sent to the Senate a bill to amend the pledge of allegiance to the flag by
inserting the words ‘under God.’”).
86.
“The inclusion of God in our pledge therefore would further acknowledge
the dependence of our people and our Government upon the moral directions of the Creator.
At the same time it would serve to deny the atheistic and materialistic concepts of
communism with its attendant subservience of the individual.” H.R. REP. No. 83-1693
(1954).
87.
See O’Leary & Platt, supra note 51.
88.
Surpass Orthodoxy, Christianity Urged, N. Y. TIMES, May 23, 1954, at 30
[hereinafter Orthodoxy]. Senator Flanders’ proposed amendment read, “This nation
devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of nations,
through whom are bestowed the blessings of Almighty God.” See Biographical Directory of
the United States Congress: Flanders, Ralph Edwards, at http://bioguide.congress.gov/
scripts/biodisplay.pl?index=F000190 (last visited Apr. 14, 2004).
2004]
THE PLEDGE OF ALLEGIANCE
389
Indeed apart from the mention of the phrase “the United States of
America” it could be the pledge of any republic. In fact, I could hear
little Muscovites repeat a similar pledge to their hammer-and-sickle
flag in Moscow.89
President Eisenhower attended the Lincoln Day services and heard Reverend
Docherty’s remarks.90 Three days later, Senator Homer Ferguson of Michigan
introduced a bill in the Senate calling for the addition of the words “under God” to
the Pledge.91 By May 1954, the Senate had adopted a resolution to effect the
change and sent the bill to the House of Representatives.92
The House Judiciary Committee had already acted on a similar
resolution.93 Representative Louis C. Rabaut, a Michigan democrat, followed the
recommendation of a constituent, and introduced a bill adding the words “under
God” to the Pledge of Allegiance.94 Representative Rabaut noted with approval
that the proposed words were the same ones Lincoln used in his Gettysburg
Address.95 The bill quickly passed the House of Representatives and President
Dwight D. Eisenhower signed the joint Congressional resolution into law on June
14, 1954.96 The New York Times quoted the President’s remarks at the signing of
the bill: “From this day forward, the millions of our school children will daily
proclaim in every city and town, every village and rural school house, the
dedication of our nation and our people to the Almighty.”97
The introduction of God into the Pledge of Allegiance was achieved in
only four months as the President and both houses of Congress moved with
89.
Clayton Knowles, Big Issue in D.C.: The Oath of Allegiance, N.Y. TIMES,
May 23, 1954, at E7.
90.
Id.
91.
Id.
92.
Id.
93.
See id.
94.
See id.
95.
See id.; see also Abraham Lincoln, Gettysburg Address (Nov. 19, 1863),
available at http://www. loc.gov/exhibits/gadd/4403.html. There are five known copies of
the Gettysburg Address. See Gettysburg Address Drafts, at http://www.loc.gov/
exhibits/gadd/gadrft.html. Interestingly, there is some question about whether the words
“under God” were in Lincoln’s famous address. The first two copies were given to John
Nicolay and John Hay, Lincoln’s private secretaries. Id. The Nicolay copy is thought to
have been written before the address while the Hay copy was probably written shortly after
Lincoln returned to Washington from Gettysburg. Id. These two copies differ from the three
which Lincoln penned after November 19th. Id. The words “under God” are missing from
the phrase “we here highly resolve that these dead shall not have died in vain—that this
nation [under God] shall have a new birth of freedom—and that government of the people,
by the people, for the people shall not perish from this earth.” Id.
96.
See Knowles, supra note 89.
97.
President Hails Revised Pledge—He Endorses Congress’ Action in Inserting
“Under God” in Allegiance Vow, N.Y. TIMES, June 15, 1954, at 31 [hereinafter Revised
Pledge]. President Eisenhower continued, “In this way we are reaffirming the transcendence
of religious faith in America’s heritage and future; in this way we shall constantly
strengthen those spiritual weapons which forever will be our country’s most powerful
resource, in peace or in war.” Id.
390
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[Vol. 46:379
unusual haste.98 Few members of Congress were willing to object to the insertion
of “under God” into the pledge, lest they be judged disloyal.99 Yet despite the
appearance of unanimity in the Nation’s capitol,100 not all Americans favored the
addition of those two words.101 Perhaps opponents were simply quieted by a fear
of seeming “unpatriotic” to a large and enthusiastic majority.102
D. Opposition to the Pledge Throughout Its History
The Pledge has always been controversial. The addition of the phrase
“under God” troubled those who were concerned about separation of church and
state. However, even before Congress amended the wording in 1954, the Pledge
and flag salute ceremony generated disagreement and division.103 The Pledge was
conceived as a means to instill patriotism in school-aged children.104 Early
opponents perceived this as nothing more than coercion through an appeal to the
emotions of impressionable youth.105 They argued that instead of pressuring
children to participate in a highly ritualized exercise, schools should teach students
about democracy and the values that the flag represents, proposing “social science
instruction, accompanied by study of the theory, facts, and duties of
citizenship.”106 Proponents of the “rational approach” contended that proper
intellectual underpinnings were necessary components of patriotic education;
students would be able to embrace the ideology symbolized by the Pledge only if
they understood it.107
98.
Knowles, supra note 89.
99.
See id.
100.
See id.
101.
See Orthodoxy, supra note 88; see also Martin W. Abel, Change in
Allegiance Pledge, N.Y. TIMES, June 18, 1954, at 22.
To The Editor of the New York Times: According to a law that was
recently passed everyone now has to believe in God if he wants to pledge
allegiance to the flag. How is this consistent with the end of the Pledge
of Allegiance, . . . with liberty and justice for all?
Id. Readers responded to Mr. Abel’s comments. See, e.g., Margaret Sandburg, Pledge of
Allegiance, N.Y. TIMES, July 12, 1954, at 12:
In reply to your correspondents who seem to have missed the point
concerning the addition of the words “under God” to the pledge of
allegiance may I refer them to our Declaration of Independence? In this
historical document the founding fathers of the freest country in the
world today called upon God to insure the rights of man and placed this
country “under God.”
Id.
102.
See Knowles, supra note 89.
103.
In the 1890s, opponents of patriotic exercises warned that a flag ritual could
not substitute for a developed sense of love for country. An editorial in the Boston Herald
described the flag exercise as “The Worship of a Textile Fabric.” See Sica, supra note 46, at
381.
104.
See id. at 381.
105.
Id. at 382.
106.
Id.
107.
See id. at 381. “[U]nless children are given intelligent knowledge and
inspiration, ‘the flags may as well be left to flutter into shreds.’” Id. (citing YOUTH’S
2004]
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391
Even some advocates of robust patriotic education opposed legislating
flag exercises.108 Colonel George T. Balch, auditor of the New York City Board of
Education and author of one of the first oaths of allegiance, appreciated the
potential that a flag ceremony had for indoctrinating students. During his tenure on
the New York City Board of Education, Colonel Balch oversaw the task of
infusing patriotic principles in the minds of newly arrived immigrant children in
the city’s public school system.109 Prior to his position in the public school system,
Balch served as a Captain and Brevet Lieutenant Colonel in the United States
Army Ordnance Corps.110 As a result of his military background, Balch understood
the power of ritual and encouraged educators to use “devotional rites of patriotism
modeled along the lines of a catechism.”111 In a primer for public school teachers
Balch commented, “There is nothing which more impresses the youthful mind and
excites its emotions than the ‘observance of form.’”112 Even Balch, however,
stopped short of endorsing legislative efforts to require flag exercises.113 In his
view, devotion to country could only be acquired through education and
experience. Absent an informed desire to honor country, Balch argued,
participation in a flag salute was meaningless.114
Today, educators and social scientists continue to question the
effectiveness of the Pledge as a tool for teaching patriotism. In the 1980s, Carol
Seefeldt, Professor of Education at the University of Maryland’s Institute for Child
Study, authored multiple articles about the Pledge in the classroom setting.115
Professor Seefeldt described children under seven or eight years as having “no
clear idea of what the Pledge is”116 and pointed to research demonstrating that
children do not understand that a flag represents a country until around eleven to
twelve years of age.117 Professor Seefeldt concluded that “[r]ather than risk
COMPANION, Sept. 18, 1890, at 484). “He indicated that placing flags on schools was
commendable but warned that the flag might become a fetish.” Id. (quoting Brown
University President E. Benjamin Andrews).
108.
See id. at 380–81.
109.
See O’Leary & Platt, supra note 51.
110.
See 2001 Ordnance Corp Hall of Fame, at http://www.goordnance.apg.
army.mil/HallofFameBios/HoF01%20Book.doc (last visited Apr. 10, 2004).
111.
See O’Leary & Platt, supra note 51.
112.
See id.
113.
See Sica, supra note 46, at 381 (citing COL. GEORGE T. BALCH, METHODS OF
TEACHING PATRIOTISM IN THE PUBLIC SCHOOLS (1890)).
114.
See id.
115.
See Carol Seefeldt, Perspectives on the Pledge of Allegiance, CHILDHOOD
EDUC., Spring 1989, at 131 [hereinafter Seefeldt, Perspectives]; see also, Carol Seefeldt, I
Pledge . . . , CHILDHOOD EDUC., May/June 1982, at 308 [hereinafter Seefeldt, I Pledge]
(“[A] typical first-grader does not understand the meaning of the words of the Pledge. The
fact that an understanding of the meaning of the words and actions has not been developed
makes the recitation into an act of indoctrination.”).
116.
Seefeldt, Perspectives, supra note 115, at 131.
117.
Id.
392
ARIZONA LAW REVIEW
[Vol. 46:379
teaching loyalty and patriotism through an act of indoctrination teachers should
foster real patriotism through meaningful experiences.”118
Sociologist Adam Gamoran described the Pledge as a form of “civil
religion,”119 which includes “ideals and observances [that] express collective
understanding of the nation’s history and its destiny.”120 The problem that
Gamoran saw with the Pledge is that it can be “both unifying and divisive at the
same time, in that it integrates most school-children into the national community,
but highlights the separation of students whose secular principles or sectarian
beliefs prohibit them from participating.”121
The campaign to add “under God” merely intensified the ongoing dispute
over the appropriateness of the Pledge in elementary schools. In the spring of
1954, as both houses of Congress prepared legislation to amend the Pledge, some
Americans cautioned against what they perceived as a departure from the
principles of the Establishment Clause.122 Citizens, civic leaders, and clergy alike
spoke out against the proposed amendment.123 The New York Times provided a
forum for citizens to debate the issue in its Letters to the Editor section.124 In
response to a letter stating that the founding fathers would have approved of
“under God” in the pledge because they put it on the Nation’s currency, one citizen
replied:
The Founding Fathers did not have this motto on their coins; they
would have considered it blasphemous to put the name of God on
money. . . . [O]n all their coins . . . was the word that represented
what they had fought so hard to gain, liberty . . . . And even if the
Founding Fathers believed in God, . . . they believed in liberty of
conscience, too. They put in the Constitution no requirement of
belief in God, but on the contrary they expressly state in the First
Amendment to the Constitution, that “Congress shall make no law
respecting an establishment of religion.”125
118.
Seefeldt, I Pledge, supra note 115, at 308. For a discussion of methods for
teaching children the meaning of the flag and the Pledge, see id.; see also Seefeldt,
Perspectives, supra note 115.
119.
Adam Gamoran, Civil Religion in American Schools, 51 SOCIOLOGICAL
ANALYSIS 235 (1990). Civil religion is the term that Robert Bellah applied to “a set of
religious beliefs and practices that are distinct from the various sectarian religions found in
the United States and common to a great majority of Americans.” Id. at 235.
120.
Id. at 235–36.
121.
Id.
122.
See Congress Proposals Hit By Unitarians, N.Y. TIMES, May 22, 1954, at 29
(reporting that “[t]he Unitarian Ministers Association . . . held that [adding under God] was
an invasion of religious liberty”).
123.
See Teachers Declared to Be Under Pressure In Move to “Get Religion Into
Education,” N.Y. TIMES, Sept. 20, 1954, at 18 (quoting Dr. J. Gordon Chamberlin
discussing religion being promoted in America, stating “[t]he current promotion of popular
religion, ‘endangers education because it deflects concern and effort from the important and
central issues of religion in education to the superficial and peripheral ones.’”).
124.
See Abel, supra note 101; see also Margaret Sandburg, Pledge of Allegiance,
N.Y. TIMES, July 17, 1954, at 12. But see Williams, supra note 103.
125.
See Sandburg, supra note 124.
2004]
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393
In May 1954, the American Unitarian Association held its 129th annual
meeting. At this meeting, civic leader and author Agnes E. Meyer warned
members that, “[t]he frenzy which has seized America to legislate Christianity into
peoples [sic] consciousness by spurious methods, both at home and abroad, will
harm the Christian religion more than the persecution it is now suffering under the
tyranny of Communists.”126
Dr. Quincy Wright, University of Chicago Professor of International Law,
cautioned that fear of Russia and the hydrogen bomb was generating “a new
intolerance among Americans.”127 Dr. Wright went on to explain to members of
the Unitarian Layman’s League that some “persons sought to escape reality by
‘huddling together under the spell of demagogues.’”128 The Unitarian Ministers
Association adopted a resolution proclaiming their opposition to the addition of
“under God” to the Pledge, describing the words as “an invasion of religious
liberty.”129
In spite of compelling concerns voiced over the decades, the Pledge is a
widely accepted ritual in most American classrooms today. Surprisingly, there
have been only a few legal challenges to the constitutionality of the Pledge in
public schools.130
III. COURT CHALLENGES TO THE PLEDGE AND OTHER
ANALOGOUS CASES
In order to fully understand the legal issues implicated by the Newdow
decision, it is important to review First Amendment challenges to the Pledge that
were raised prior to the Newdow case. It is also helpful to examine the cases in
which the Court articulated various tests for determining whether government
actions violate the Establishment Clause.131 Finally, it is useful to compare
Newdow to Sherman v. Community Consolidated School District 21,132 the only
other federal appellate decision that addresses an Establishment Clause challenge
to the Pledge in public schools.133
A. The Supreme Court’s Pledge Jurisprudence
The United States Supreme Court has addressed the question whether
reciting the Pledge in a public school violates the First Amendment twice—most
126.
Orthodoxy, supra note 88.
127.
Id.
128.
Id.
129.
Unitarians, supra note 122.
130.
See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940); W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624 (1943); Goetz v. Ansell, 477 F.2d 636 (2d Cir. 1973);
Smith v. Denny, 280 F. Supp. 651 (E.D. Cal. 1968); Sherman v. Cmty. Consol. Sch. Dist.
21, 758 F. Supp. 1244 (N.D. Ill. 1991); Newdow v. U.S. Cong., 292 F.3d. 597 (9th Cir.
2002).
131.
See Lemon v. Kurtzman, 403 U.S. 602 (1971); Lee v. Weisman, 505 U.S.
577 (1992).
132.
980 F.2d 437 (7th Cir. 1992).
133.
See id.
394
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recently sixty-one years ago.134 First, in the 1940 case of Minersville School
District v. Gobitis,135 the Court upheld a Pennsylvania statute requiring students to
salute the flag and recite the Pledge.136 Three years later, the Court abruptly
reversed itself in West Virginia State Board of Education v. Barnette,137 striking
down a West Virginia statute that conditioned public school attendance on
compliance with daily flag salute and recitation of the Pledge of Allegiance.138 The
Court held that absent a clear and present danger, a student cannot be compelled to
speak.139
1. Minersville School District v. Gobitis
In 1940, Walter Gobitis brought suit on behalf of his ten and twelve-yearold children after the children were expelled from the public school system for
refusing to recite the Pledge.140 Mr. Gobitis was a member of the Jehovah’s
Witnesses and had raised his children according to the doctrines of that faith.141 An
important principle of the Jehovah’s Witnesses religion is that the Bible is the
Word of God and the supreme authority.142 Mr. Gobitis believed that reciting the
Pledge was forbidden by scripture, specifically Exodus 20:3–5:
3. Thou shalt have no other gods before me.
4. Thou shalt not make unto thee any graven image, or any likeness
of any thing that is in heaven above, or that is in the earth beneath,
or that is in the water under the earth.
5. Thou shalt not bow down thyself to them, nor serve them.143
Mr. Gobitis sought to enjoin school authorities from requiring his
children to participate in the flag-salute ceremony as a condition of their
attendance at the Minersville public school.144 After a trial on the merits, the
District Court of Pennsylvania granted Plaintiff’s request for relief.145 The Third
Circuit Court of Appeals upheld the decision.146 The U.S. Supreme Court, noting
that the lower court decision ran counter to several of their own per curiam
decisions, granted certiorari to consider the issues.147
The specific issue identified by the Court was whether requiring a child to
participate in the flag ceremony, when that child objected on religious grounds,
contravened his constitutional rights to liberty of conscience, free exercise of
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
See Gobitis, 310 U.S. 586; see also Barnette, 319 U.S. 624.
310 U.S. at 598.
Id.
319 U.S. at 642.
See id.
Id. at 633.
See Gobitis, 310 U.S. at 591–92.
Id. at 591.
Id.
Id. at 592.
Id.
Gobitis v. Minersville Sch. Dist., 24 F. Supp. 271 (E.D. Pa. 1938).
Minersville Sch. Dist. v. Gobitis, 108 F.2d 683 (3d Cir. 1939).
Gobitis, 310 U.S. at 592.
2004]
THE PLEDGE OF ALLEGIANCE
395
religion, and freedom from state imposition of religion.148 The Court emphasized
the importance of these freedoms noting that, “in safeguarding conscience we are
dealing with interests so subtle and so dear, every possible leeway should be given
to the claims of religious faith.”149 Noting the enormous importance of the religion
clauses to the framers, the Court reasoned that the scope of the First Amendment
could only be questioned when, as here, “the conscience of individuals collides
with the felt necessities of society.”150
The Court applied a balancing test, weighing individual rights against
society’s need for stability, harmony and ultimately, national security.151 It found
that the state had a legitimate interest in maintaining a civil society, noting that in
order to accomplish this, the legislature must have power “to secure and maintain
that orderly, tranquil, and free society without which religious toleration itself is
unattainable.”152 Without such a social scheme, the Court reasoned, the issue of
religious freedom would be moot.153 The Court concluded that the rights of the
individual, guaranteed by the First and Fourteenth Amendments, must yield to the
greater interests of society.154
Writing for the dissent, Justice Stone criticized the Pennsylvania
legislature for both suppressing free speech and prohibiting the free exercise of
religion, in violation of the First Amendment.155 In his view, the statute sought “to
coerce these children to express a sentiment which, as they interpret it, they do not
entertain, and which violates their deepest religious convictions.”156 Justice Stone
was not alone in his concern over the implications of the Gobitis decision. Just
three years later, the Court reconsidered and reversed its decision.157
2. West Virginia State Board of Education v. Barnette
In light of the Supreme Court’s Gobitis decision, the West Virginia
legislature passed a statute “ordering that the salute to the flag become a regular
part of the program of activities in the public schools,” and requiring teachers and
students to participate or face expulsion.158 Parents of the Jehovah’s Witnesses
faith brought suit in the Southern District of West Virginia on the grounds that the
Pledge and flag salute infringed on their religious liberty.159
The District Court granted plaintiffs’ request for an injunction restraining
enforcement of the law against Jehovah’s Witnesses.160 On appeal to the Supreme
Court, West Virginia argued that the state had a legitimate interest in promoting
148.
149.
150.
151.
152.
153.
154.
155.
156.
157.
158.
159.
160.
See id. at 593.
Id. at 594.
Id. at 593.
See id. at 595–97.
Id. at 595.
See id. at 594.
See id. at 596.
Id. at 601 (Stone, J., dissenting).
Id.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
W. VA. CODE § 1734 (1941).
Barnette, 319 U.S. at 629–30.
Id. at 630.
396
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good citizenship.161 The Court agreed and acknowledged that government could
require public schools to teach “‘the structure and organization of our government,
including the guaranties of civil liberty which tend to inspire patriotism and love of
country.’”162
The Court nevertheless distinguished the Pledge from traditional
instruction, noting that it was “dealing with a compulsion of students to declare a
belief. They are not merely made acquainted with the flag salute so that they may
be informed as to what it is or even what it means.”163 The Court compared the
West Virginia law to one of censorship, and found that compelling an individual to
speak infringed his rights in the same way that restricting his speech did.164
Reasoning that the Constitution tolerates censorship “only when the expression
presents a clear and present danger of action of a kind the State is empowered to
prevent and punish,”165 the Court concluded that, “involuntary affirmation could
be commanded only on even more immediate and urgent grounds than silence.”166
Unable to find that a clear and present danger would result from public school
students refusing to recite the Pledge, the Court affirmed the lower court judgment
enjoining enforcement of the West Virginia statute.167
Thus, just three years after Gobitis, the Court reversed itself, holding that
public schools may not compel students to recite the Pledge.168 It should be noted
however, that the Court issued its Barnette opinion prior to passage of the 1954
Act adding the words “under God” to the Pledge.169 Therefore, in deciding both
Gobitis and Barnette, the Court relied primarily on the First Amendment
guarantees of freedom of speech and free exercise of religion. To date, the Court
has not addressed whether the Pledge, with the added words “under God,” violates
the Establishment Clause.170
Although Barnette did not involve an Establishment Clause challenge, it
nonetheless stands for the proposition that public school students cannot be
compelled to recite the Pledge.171 Hence, to resolve the issues presented by
161.
162.
(1940)).
163.
164.
165.
166.
167.
168.
169.
170.
See Barnette, 319 U.S. at 631.
Id. at 631 (quoting Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 604
Id.
Id. at 633–34.
Id. at 633.
Id.
Id. at 642.
Id.
See id.; 83 Pub. L. No. 396, 68 Stat. 249 (1954).
See Barnette, 319 U.S. at 642.
Nor does the issue as we see it turn on one’s possession of particular
religious views or the sincerity with which they are held. While religion
supplies appellees’ motive for enduring the discomforts of making the
issue in this case, many citizens who do not share these religious views
hold such a compulsory rite to infringe constitutional liberty of the
individual.
Id. at 634–35.
171.
Id. at 642.
2004]
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397
Newdow, the Court must now combine the principles articulated in Barnette with
those it has recognized in recent Establishment Clause challenges.172
B. The Supreme Court’s Establishment Clause Cases: The Three Tests
Of the many Establishment Clause challenges the Court has decided in
the sixty-one years since Barnette, three are particularly relevant to the issues
raised by public school teachers leading students in reciting, “one Nation, under
God.” The following cases announce the variety of tests the Court has devised for
determining whether a challenged state activity violates the First Amendment’s
Establishment Clause.
1. Lemon v. Kurtzman
In 1971, the Court accepted two cases challenging the constitutionality of
state aid to nonpublic schools and decided them in tandem.173 The Court
acknowledged the difficulty it faced in attempting to define how far a state could
go to assist a religiously-affiliated educational institution without crossing the First
Amendment line.174 Describing the religion clauses as “at best opaque,” the Court
noted that “[c]andor compels acknowledgment, moreover, that we can only dimly
perceive the lines of demarcation in this extraordinarily sensitive area of
constitutional law.”175
In order to determine whether the statutes in question crossed the line
between permissible and impermissible state action, the Court outlined and then
applied the following standards, now known as the three-prong Lemon test:
Every analysis in this area must begin with consideration of the
cumulative criteria developed by the Court over many years . . .
[f]irst, the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster “an excessive
government entanglement with religion.”176
The Lemon cases involved challenges to Rhode Island and Pennsylvania
statutes that provided aid directly to, or for the benefit of, private schools.177 The
Rhode Island Act authorized use of state funds to supplement the salaries of
teachers of secular subjects in private religious schools.178 Teachers were eligible
to receive extra payments of up to fifteen percent of their salaries directly from the
172.
Since 1971, the Court has applied three tests to Establishment Clause
challenges. The three-pronged Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1971), the
endorsement test from Allegheny, County of Allegheny v. Am. Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U.S. 573 (1989), and Lee’s coercion test, Lee v. Weisman,
505 U.S. 577 (1992), will be discussed infra.
173.
Lemon v. Kurtzman, 403 U.S. 602 (1971) (judgment in Rhode Island cases
affirmed; judgment in Pennsylvania case reversed and case remanded).
174.
See id. at 612.
175.
Id.
176.
Id. at 612–13.
177.
See id.
178.
Id. at 607.
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State.179 Similarly, Pennsylvania authorized the Superintendent of Public
Instruction to “directly reimburse[] nonpublic schools . . . for their actual
expenditures for teachers’ salaries, textbooks, and instructional materials.”180
Under the first prong of the test, the Court considered the legislative
purpose of the acts and noted that both statutes were “intended to enhance the
quality of the secular education in all schools covered by the compulsory
attendance laws.”181 Having a legitimate secular purpose, although necessary, was
not sufficient to withstand Establishment Clause scrutiny.182
The Court then turned to the third prong of the Lemon test, which asks
whether “the cumulative impact of the entire relationship arising under the statutes
in each State involve[d] excessive entanglement between government and
religion.”183 In both cases, states directly funded secular courses taught in private
religious schools. In order to ensure that government monies were only being used
for secular purposes, the states had to monitor the schools. The Court determined
that this level of surveillance required excessive entanglement between
government and religion.184 Having made this judgment, the Court concluded that
it need not reach a decision as to the second prong, namely whether the principal
or primary effect of the statutes was to advance religion.185 The Court held that
both statutes violated the Establishment Clause because they tended to foster
excessive government entanglement with religion.186
The Lemon test became the standard for evaluating Establishment Clause
challenges and the Court applied it to every such case between 1971 and 1992,
with one exception. In 1983, the Court heard a First Amendment challenge by a
member of the Nebraska State Legislature to that state’s practice of having a state
employed chaplain open each legislative session with a prayer—a practice
supported by more than two hundred years of history.187 The Marsh majority
declined to apply Lemon, opting instead to analyze the Nebraska practice in light
of history and tradition.188 The Court noted that the first Congress, many of whose
members took part in framing the Constitution, passed an act allowing legislative
prayer.189 Therefore, the Court reasoned, an act passed by these individuals was
“contemporaneous and weighty evidence of [the Constitution’s] true meaning.”190
More specifically, the State of Nebraska adopted the practice of “opening
179.
Id.
180.
Id. at 609. When the Court decided Lemon the only beneficiaries of the
Rhode Island Salary Supplement Act were Roman Catholic elementary schools. Id.
181.
Id. at 613.
182.
Id. at 614.
183.
Id. at 613–14.
184.
Id. at 615.
185.
Id. at 613–14.
186.
Id. at 615.
187.
Marsh v. Chambers, 463 U.S. 783 (1983).
188.
Id. The Marsh Court recognized that the court of appeals had “prohibited the
State from engaging in any aspect of its established chaplaincy practice” because the
“practice violated all three elements of the [Lemon] test.” Id. at 786.
189.
See id.
190.
Id. at 790 (quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888)).
2004]
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legislative sessions with prayer . . . even before the State attained statehood.”191
Interestingly, the Court distinguished Marsh from cases involving students, noting
that the suit was brought by an adult who was “presumably not readily susceptible
to ‘religious indoctrination’ . . . or peer pressure.”192
In dissent, Justice Brennan commented that the majority reached its
conclusion without applying any of the tests that the Court traditionally applied to
Establishment Clause cases.193 “That it fails to do so is, in a sense, a good thing,
for it simply confirms that the Court is carving out an exception to the
Establishment Clause rather than reshaping Establishment Clause doctrine to
accommodate legislative prayer.”194 Since Marsh, the Court has expressly rejected
a historical analysis in cases involving religious activities in public schools.195
“Such a historical approach is not useful in determining the proper roles of church
and state in public schools, since free public education was virtually nonexistent at
the time the Constitution was adopted.”196 Likewise, the Pledge was not introduced
into public schools until more than one hundred years after the Constitution was
adopted.197
2. County of Allegheny v. ACLU
In 1986, citizens of Allegheny County, Pennsylvania challenged the
constitutionality of a holiday display that included a crèche and a Chanukah
menorah at the county courthouse.198 The Court applied the three-prong Lemon test
then added that “[i]n recent years, we have paid particularly close attention to
whether the challenged governmental practice either has the purpose or effect of
‘endorsing’ religion.”199 In so stating, the Court essentially combined the
“purpose” and “effect” prongs of Lemon and asked whether either the purpose or
the effect of the contested action was to endorse religion.200 Under what has
191.
Id. at 789.
192.
Id. at 792 (citing Tilton v. Richardson, 403 U.S. 672, 686 (1971); Colorado
v. Treasurer & Receiver Gen., 392 N.E.2d 1195, 1200 (Mass. 1979); Abington Sch. Dist. v.
Schempp, 374 U.S. 203, 290 (1963) (Brennan, J., concurring)).
193.
Id. at 796 (Brennan, J., dissenting).
194.
Id.
195.
See Edwards v. Aguillard, 482 U.S. 578, 583 n.4 (1987).
196.
Id. (citing Wallace v. Jaffree, 472 U.S. 38 (1985) (O’Connor, J.,
concurring)). For a discussion of how the Court should expand the principles set forth in
Marsh to find the Pledge consistent with prior holdings, see Philip N. Yannella, Stuck in the
Web of Formalism: Why Reversing the Ninth Circuit’s Ruling on the Pledge of Allegiance
Won’t Be So Easy, 12 TEMP. POL. & CIV. RTS. L. REV. 79 (2002).
197.
See Sica, supra note 46.
198.
County of Allegheny v. Am. Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573, 578–81 (1989).
199.
See id. Justice Sandra Day O’Connor introduced the endorsement inquiry as
a means to clarify the Lemon test in her 1984 concurrence in Lynch v. Donnelly, 465 U.S.
668, 689–92 (1984) (O’Connor, J., concurring). The effect was to collapse the purpose and
effect prongs of Lemon into one inquiry. See id. The quesions are: 1) whether the
government intends to convey a message of endorsement or disapproval of religion; and 2)
whether the government practice has the effect of communicating a message of government
endorsement or disapproval of religion. See id. (O’Connor, J., concurring).
200.
Allegheny, 492 U.S. at 592–93.
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become known as the “endorsement test,” the key inquiry is whether the
challenged practice conveys or intends to convey a message that “religion or a
particular religious belief is favored or preferred” by government.201
The Allegheny Court explained that it was not articulating an entirely new
test for Establishment Clause contests. The Court recognized that the word
“endorsement” is similar to “promotion,” and pointed out that it “long since has
held that government may not . . . promote one religion or religious theory against
another.”202 Regardless of the term used, the Court held that “[t]he Establishment
Clause, at the very least, prohibits government from appearing to take a position
on questions of religious belief or from ‘making adherence to a religion relevant in
any way to a person’s standing in the political community.’”203
Applying the test, the Court concluded that by displaying a creche on the
main stairway of the courthouse, “the county sends an unmistakable message that
it supports and promotes the Christian praise to God that is the crèche’s religious
message.”204 In contrast, the Court found that the menorrah, displayed next to a
Christmas tree and a sign saluting liberty, was not likely to cause residents to
perceive government endorsement of the Christian or Jewish faiths.205
3. Lee v. Weisman
In 1992, Justice Kennedy articulated yet another test for evaluating
whether a government action violates the Establishment Clause.206 In Lee, a junior
high student objected to a nonsectarian prayer being offered at graduation.207 The
Court found that the outcome of the case was controlled by two facts: (1) “state
officials direct[ed] the performance of a formal religious exercise” and (2)
“attendance and participation” were obligatory, in spite of the district policy of
optional attendance.208
Under those facts, the Court declined to apply either the three-prong
Lemon test or the Allegheny endorsement test.209 The Court focused instead on the
likelihood that dissenting students would feel coerced to participate because they
would have “no real alternative which would have allowed [them] to avoid the fact
or appearance of participation.”210 The Court reasoned that putting vulnerable
201.
See id. at 592–93 (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985)
(O’Connor, J., concurring)).
202.
Id. at 593.
203.
Id. at 594 (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor,
J., concurring)).
204.
Id. at 600.
205.
Id. at 620.
206.
See Lee v. Weisman, 505 U.S. 577 (1992).
207.
Id. at 581. (“The Guidelines recommend that public prayers at nonsectarian
civic ceremonies be composed with ‘inclusiveness and sensitivity.’”).
208.
Id. at 586.
209.
Id. at 587. (“We can decide the case without reconsidering the general
constitutional framework by which public schools’ efforts to accomodate religion are
measured.”).
210.
Id. at 588.
2004]
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young students in a position where they would likely be “induced to conform”211
violated the Establishment Clause.212 In ruling, the Court emphasized the State’s
duty to protect elementary and secondary public school students from subtle
coercive pressure.213 The school’s control of the graduation, it said, placed public
pressure and peer pressure on students to stand or at least maintain respectful
silence during the prayer.214 The Court pointed to psychological research that
supported the “common assumption that adolescents are often susceptible to
pressure from their peers towards conformity, and that the influence is strongest in
matters of social convention.”215 Government, the Court concluded, “may no more
use social pressure to enforce orthodoxy than it may use more direct means.”216
To date, the Supreme Court has not overruled Lemon, Allegheny, or Lee.
This has led to confusion and division in the circuit courts whether to apply one or
more of the tests and, if so, which test(s) to apply when deciding Establishment
Clause challenges.217 The Lemon and Allegheny tests invalidate statutes where
excessive government “entanglement with religion” is present and/or the “purpose
and effect” of the challenged government activity is to promote religion or to favor
one religion over another.218 On the other hand, the Court’s most recent approach
in Lee deviated from the line of inquiry in Lemon and Allegheny and focused on
whether the plaintiff was “coerced” to attend or participate in a religious
exercise.219
IV. THE CIRCUIT COURTS SPLIT
Two challenges to the Pledge of Allegiance in public schools have
reached the circuit court level to date. In these cases, the respective courts
disagreed on which test(s) to apply. This inconsistency among the federal
211.
Id. at 599.
The sole question presented is whether a religious exercise may be
conducted at a graduation ceremony in circumstances where, as we have
found, young graduates who object are induced to conform. No holding
by this Court suggests that a school can persuade or compel a student to
participate in a religious exercise.
Id.
212.
Id. at 587 (“[T]he Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise.”).
213.
Id. at 593.
214.
Id. (“This pressure, though subtle and indirect, can be as real as any overt
compulsion.”).
215.
Id. at 593.
216.
Id. at 594.
217.
See, e.g., Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir.
1992). The Seventh Circuit found it unnecessary “to resolve this case by parsing Lemon.
Our approach is more direct. Must ceremonial references in civic life to a deity be
understood as prayer, or support for all monotheistic religions, to the exclusion of atheists
and those who worship multiple gods?” Id. But see Newdow v. United States Congress, 292
F.3d 597 (9th Cir. 2002), in which the Ninth Circuit applied Lemon, Allegheny, and Lee.
218.
Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971); County of Allegheny v.
Am. Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 592–93 (1989).
219.
Lee, 505 U.S. at 592–94.
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circuits220 presents the opportunity for the Supreme Court to offer needed
guidance.
A. Sherman v. Community Consolidated School District
In 1991, Robert I. Sherman brought an action in behalf of himself and his
minor son, Richard. Mr. Sherman named the Illinois Attorney General, the school
district, its superintendent, and the principal of the school Richard attended,
challenging the constitutionality of an Illinois statute providing for daily recitation
of the Pledge of Allegiance in public elementary schools.221 The district court
granted the defendants’ motions for summary judgment after determining that the
statute satisfied all three prongs of the Lemon test.222 In addition, the court found
that the statute was not coercive as written or applied.223
On appeal, the Seventh Circuit declined to apply the Lemon test, noting
that Lemon’s “status as a general-purpose tool for administering the establishment
clause is in doubt.”224 The Seventh Circuit took the position that the Supreme
Court granted certiorari in Lee v. Weisman to reconsider the Lemon test and with
their decision, the Court failed to “renew[] Lemon’s lease.”225 The court reasoned
that since the Supreme Court justices were divided on the value of Lemon, it was
not required to apply its test in order to decide the issues presented in Sherman.226
Indeed, the Seventh Circuit resolved Sherman’s First Amendment challenge to the
Pledge without applying any of the tests announced by the Supreme Court.227
The Seventh Circuit’s rationale for rejecting all the Supreme Court’s
established tests was that the Pledge is “a secular rather than sectarian vow,” and
that the words “under God” are a mere ceremonial reference to deity, similar to
other such references in civic life that do not require an analysis under the Court’s
Establishment Clause jurisprudence.228 Ultimately, the Seventh Circuit’s decision
was informed by two critical considerations: 1) “[c]eremonial references” to God
existed during the earliest part of American history; and 2) in dicta, the Supreme
220.
See Sherman, 980 F.2d 437. But see Newdow, 292 F.3d 597.
221.
Sherman v. Cmty. Consol. Sch. Dist. 21, 758 F. Supp. 1244 (N.D. Ill. 1991).
222.
Id. at 1248.
223.
Sherman, 980 F.2d at 442. The court reasoned that although the statute stated
that the “shall be recited each school day by pupils,” it did not specify “all pupils.” Id. This
language taken together with the absence of a penalty for refusing to recite the pledge led
the court to conclude that students were not coerced. Id.
224.
See id. at 445.
225.
See id. (noting that in Lee four justices wanted “to jettison Lemon forthwith,”
one disparaged it, one wrote a concurring opinion without relying on Lemon, and only three
favored it).
226.
See id. (stating that “we are not disposed to resolve this case by parsing
Lemon.”)
227.
See id.
228.
See id. The majority seemed to be taking its cue from Justice Brennan’s
dissent in Lynch v. Donnelly, wherein he wrote, “the references to God contained in the
Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as [ ]
form[s of] ‘ceremonial deism,’ protected from Establishment Clause scrutiny chiefly
because they have lost through rote repetition any significant religious content.” 465 U.S.
668, 716 (1984) (Brennan, J., dissenting).
2004]
THE PLEDGE OF ALLEGIANCE
403
Court said that the Pledge is consistent with the principles of the Establishment
Clause.229 Based on these considerations, the Seventh Circuit upheld the Illinois
statute, finding no violation of the First Amendment’s Establishment Clause.
B. Newdow v. U.S. Congress
Dr. Michael Newdow recently brought an action challenging the
constitutionality of a teacher-led Pledge of Allegiance in his daughter’s public
school classroom.230 Dr. Newdow argued that the practice was unconstitutional for
two reasons. First, the 1954 Act adding the words “under God” to the Pledge
violated the Establishment Clause because the purpose and effect of the added
words was to “endors[e] theistic religious belief.”231 Second, the words “under
God” constitute religious speech, which the State is forbidden from using or
endorsing.232 Even if the Court found the 1954 Act constitutional, Newdow
reasoned that the California public school system violated the First Amendment
every time one of its teachers recited “under God” in a public classroom.233 For
these reasons, Dr. Newdow asked the court to enter an injunction preventing
California schools from using what he labeled the “now-sectarian” Pledge.234
In ruling, the district court accepted the findings of U.S. Magistrate Judge
Peter Nowinski, who recommended Newdow’s complaint be dismissed pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim.235 The magistrate based his
recommendation on four Supreme Court cases where, in dicta, the Court suggested
that the Pledge does not violate the Establishment Clause.236 The magistrate also
229.
Sherman, 980 F.2d at 447–48 (quoting County of Allegheny v. Am. Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 602–03 (1989): “Our previous
opinions have considered in dicta the motto and the pledge, characterizing them as
consistent with the proposition that the government may not communicate an endorsement
of religious belief.”). But see Allegheny, 492 U.S. at 672–73 (noting that hearing the Pledge
with the phrase “under God” recited would cause the “reasonable” atheist to feel “less than
a ‘full membe[r] of the political community.’” (Kennedy, J., dissenting)).
230.
See Newdow v. U.S. Cong., 292 F.3d 597 (2002).
231.
See id. at 602.
232.
See Complaint, Newdow v. U.S. Cong., 292 F.3d 597 (9th Cir. 2002), at ¶ 82
(No. 00-16423), available at http://www.restorethepledge.com/.
When teachers . . . lead their students in a daily recitation that states in
part that we are “one Nation under God,” they endorse religious doctrine
and inculcate a belief that not only is there a God, but that we are one
nation “under” that entity. This is unconstitutional. (“As we have
repeatedly recognized, government inculcation of religious beliefs has
the impermissible effect of advancing religion.”).
Id. (quoting Agostini v. Felton, 521 U.S. 203, 223 (1997)).
233.
Newdow v. U.S. Cong., No. Civ. S-CO-0495 MLS PAN PS (S.D. Cal. July
2, 2000) (order granting motion to dismiss).
234.
Complaint at ¶ 128, Newdow (No. 00-16423). Dr. Newdow coined the term
“now-sectarian” to describe the Pledge of Allegiance after Congress added “under God” in
1954. Id.
235.
U.S. Magistrate’s Findings and Recommendations, Newdow v. U.S. Cong.
(May 25, 2000) (No. Civ. S-CO-0495 MLS PAN PS), available at
http://www.restorethepledge.com/.
236.
Id. at 2.
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cited two federal Court of Appeals opinions that stated in dicta that the Pledge was
not an endorsement of religion.237 Finally, the magistrate found the Seventh
Circuit’s Sherman v. Community Consolidated School District238 opinion to be
directly on point.239 The magistrate cited Sherman for the proposition that “schools
may lead the Pledge of Allegiance without violating the First Amendment so long
as pupils are not compelled to participate, because the ceremonial reference to God
in the Pledge does not convey endorsement of particular religious beliefs.”240 The
district court accepted the magistrate’s legal analysis and issued an order on July
21, 2000, dismissing Newdow’s complaint.241
In June 2002, a three-judge panel of the Ninth Circuit reversed the district
court and granted Dr. Newdow’s request for injunctive relief.242 The panel
concluded that both the addition of “under God” to the Pledge, and the school
district’s policy of teachers leading the Pledge in public schools, violated the First
Amendment to the Constitution.243 The court acknowledged that over the past
thirty years the Supreme Court had utilized three different tests to analyze alleged
Establishment Clause violations in the realm of public education.244 They noted
that lower courts had not consistently applied these tests, leaving open the question
of which test(s) to apply.245
In light of this inconsistency and confusion, the Ninth Circuit looked to
the Supreme Court’s most recent school prayer decision, Santa Fe Independent
School District v. Doe.246 Santa Fe presented an Establishment Clause challenge to
voluntary, student-initiated, student-led prayers at high school football games.247
The Court expressly stated that the analysis in such a case was “properly guided by
237.
238.
239.
Id.
Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).
Findings and Recommendations, Newdow (No. Civ. S-CO-0495 MLS PAN
PS).
The only federal Court of Appeal directly to address this issue held that
schools may lead the pledge of allegiance without violating the First
Amendment so long as pupils are not compelled to participate, because
the ceremonial reference to God in the pledge does not convey
endorsement of particular religious beliefs.
Id. (citing Sherman, 980 F.2d at 442–48).
240.
Id. (citing Sherman, 980 F.2d at 442–48).
241.
Newdow v. U.S. Cong., No. Civ S-CO-0495 MLS PAN PS (S.D. Cal. July 2,
2000) (order granting motion to dismiss).
242.
See Newdow v. U.S. Cong., 292 F.3d 597 (9th Cir. 2002). The following day
the court issued a stay pending the outcome of defendant’s motion for a rehearing en banc.
Newdow v. U.S. Cong., No. 00-16423, D.C. No. CV-00-00495-MLS/PAN (June 27, 2002)
(order staying June 26, 2002 opinion), available at http://www.restorethepledge.com/. On
February 28, 2003, the Ninth Circuit denied appellee’s request for a rehearing en banc.
Newdow v. U.S. Cong., No. 00-16423 (9th Cir. Feb. 28, 2003) (Order and Amended
Opinion and Amended Concurrence/Dissent), available at http://www.restorethepledge
.com/.
243.
See Newdow, 292 F.3d 597.
244.
See id. at 605.
245.
Compare Sherman, 980 F.2d 437, with Newdow, 292 F.3d 597.
246.
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
247.
Id. at 310.
2004]
THE PLEDGE OF ALLEGIANCE
405
the principles that we endorsed in Lee.”248 The Court then applied Lee’s coercion
test, Allegheny’s religious endorsement test, and the third prong of the Lemon test,
which evaluates the level of government entanglement with religion.249
Based on the Supreme Court’s analysis in Santa Fe, and in the interest of
completeness, the Ninth Circuit panel employed the three-prong Lemon test,
Allegheny’s endorsement test, and Lee’s coercion test. The court ultimately
concluded that both the legislative act, which added “under God” to the Pledge,
and the practice of a teacher-led pledge in public elementary schools failed each
test.250
C. Comparing the Sherman and Newdow Opinions
The Newdow Court applied each of the tests articulated by the Supreme
Court for deciding challenges to the Establishment Clause, while the Sherman
Court applied none of them.251 Yet the facts of Newdow are indistinguishable from
Sherman: both involved parental objection to daily recital of the Pledge in their
child’s public school classroom.252 The Ninth and Seventh Circuits took distinct
analytical approaches because of differences in: (i) the way the courts
conceptualized the words “under God”; (ii) the weight the courts afforded to stare
decisis versus dicta in cases involving the Establishment Clause; and (iii) the
Supreme Court’s jurisprudence at the time that each of these cases was decided.
1. The Nature of the Challenged Speech Determined the Circuit Courts’
Analysis
Perhaps the most significant difference between the approaches taken by
the Newdow and Sherman Courts stemmed from their differing views about the
nature of the challenged speech. The Newdow Court classified “under God” as
religious speech253 while the Sherman Court categorized the same language as a
“secular rather than sectarian vow,” noting that “everything would be different if it
were a prayer, or other sign of religious devotion.”254 As a result, the courts’
respective analyses were quite distinct. The Ninth Circuit applied each of the
Supreme Court’s tests for evaluating challenges to religious speech. The Seventh
Circuit conceptualized “under God” as a historical reference to deity similar to that
found in Lincoln’s revered Gettysburg Address, and therefore concluded that it
need not apply any Establishment Clause tests.255
248.
Id. at 302.
249.
See id.
250.
Newdow, 292 F.3d at 607. As discussed supra, the court did not address the
question of whether Congress’ 1954 Act violated the Establishment Clause.
251.
See Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).
But see Newdow, 292 F.3d 597; see also Newdow v. U.S. Cong., 328 F.3d 466 (9th Cir.
2003).
252.
Sherman, 980 F.2d at 439; Newdow, 292 F.3d at 597.
253.
Newdow, 328 F.3d 466.
254.
Sherman, 980 F.2d at 445.
255.
“[U]nder God” was added in 1954, just thirty six years before the Sherman
challenge. See Knowles, supra note 89.
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The Sherman Court failed to consider three important differences
between the Pledge, as a patriotic exercise, and the proclamations of the nation’s
Founding Fathers. The first difference is contextual. In the early elementary
grades, children learn the words of the Pledge but are not taught about nineteenth
century developments that led to the Pledge being introduced into public schools.
As Justice Jackson noted in Barnette, “[t]hey are not merely made acquainted with
the flag salute so that they may be informed as to what it is or even what it
means.”256
Second, school children are expected to adopt the values of the Pledge.
They are not taught that the words simply express the ideals of the author. As the
Court recognized in Barnette, “[h]ere . . . we are dealing with a compulsion of
students to declare a belief.”257 In contrast, students may be asked to memorize
President Abraham Lincoln’s Gettysburg Address, for example, but they are not
required to espouse Lincoln’s sentiments as their own. Further, teachers do not
lead school children, from the earliest grades throughout their elementary
education, in daily recital of the Gettysburg Address.
Third, the Pledge differs from a historical address in the way it is
delivered.258 Students do not merely memorize and recite the words of the Pledge.
Rather, students are taught to pledge, in a highly ritualized ceremony that requires
an erect posture, a salute, and a respectful attitude.259 Supporters of the daily
Pledge ceremony in public schools argue that the Pledge is not a prayer and should
therefore be exempted from Establishment Clause analysis. Although the Pledge is
not a prayer, neither is it a historical reference to deity. The unique nature of the
Pledge ceremony requires application of an Establishment Clause analysis similar
to that used by the Court in other cases where it has assessed the constitutionality
of state-sponsored religious speech.
Given the similarities between the issues raised in Lee and the Pledge
cases, the Lee coercion test seems to be a particularly appropriate tool for
measuring the constitutionality of the Pledge. In Lee, the Court analyzed the
constitutionality of coercing children to participate in school-related prayers,
concluding that such a practice violates the First Amendment’s Establishment
Clause.260 In Pledge cases, courts must determine whether coercing young students
to participate in recital of the Pledge, vowing that ours is “one Nation, under God,”
violates the Constitution. Rather than merely being asked to listen to a religious
prayer, a Pledge participant must publicly take an oath promising to faithfully
adhere to the principles for which the flag stands. Since 1954, American children
cannot take this oath of loyalty to country without also proclaiming that the United
States is subordinate to divine authority.261
256.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 631 (1943).
257.
Id.
258.
See Gamoran, supra note 119, at 236.
259.
Pledge is defined as “a formal promise to do something, as the performance
of an obligation or duty, or to refrain from doing something.” AMERICAN HERITAGE
DICTIONARY (William Morris ed., 1991).
260.
See Lee v. Weisman, 505 U.S. 577 (1992).
261.
See Gamoran, supra note 119, at 238.
2004]
THE PLEDGE OF ALLEGIANCE
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2. The Doctrine of Stare Decisis Versus Dicta
In deciding Newdow, the Ninth Circuit applied each of the tests that the
Supreme Court has historically used in analyzing Establishment Clause
challenges.262 Conversely, the Sherman Court ignored the doctrine of stare decisis
and decided the constitutionality of the Pledge on the basis of dicta.263 The Seventh
Circuit rationalized its departure from time-honored judicial practice, claiming that
it was free to reject the Lemon test because the Supreme Court was divided as to
the benefit of the Lemon test as a tool.264 It is less clear how the circuit court
reached the conclusion that it could likewise ignore Lee’s coercion test, which the
Court had announced just five months before.265 The Sherman Court barely
mentioned Lee, noting only that the purpose of Lee was to reconsider Lemon and
that Lee had left the Lemon test intact.266
The Seventh Circuit elected to rely on Allegheny, where the Supreme
Court said in dicta that its “previous opinions ha[d] considered . . . the motto and
the pledge, characterizing them as consistent with the proposition that the
government may not communicate an endorsement of religious belief.”267 The
Seventh Circuit did not address all of the dicta found in Allegheny, however. Four
justices argued that the Pledge could not withstand Allegheny’s endorsement test
because a “‘reasonable atheist’ would . . . feel less than a ‘full membe[r] of the
262.
Newdow v. U.S. Cong., 292 F.3d 597 (9th Cir. 2002).
263.
Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 446–48 (7th Cir.
1992).
264.
Id. at 445.
265.
Id. The Sherman court did not specifically address the coercion test. Rather it
announced:
Our approach is more direct. Must ceremonial references in civil life to a
deity be understood as prayer . . . ? . . . You can’t understand a phrase
. . . by syllogistic reasoning. Words take their meaning from social as
well as textual contexts . . . . Unless we are to treat the founders of the
United States as unable to understand their handiwork . . . we must ask
whether those present at the creation deemed ceremonial invocations of
God as “establishment.” They did not.
Id. at 445.
266.
Id. at 445.
267.
Id. at 447 (quoting County of Allegheny v. Am. Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U.S. 573, 602–03 (1992)). The Allegheny Court cited
Justice O’Connor’s concurrence and Justice Brennan’s dissent in Lynch v. Donnelly, 465
U.S. 668 (1984). Justice O’Connor found the crèche to be no more of an endorsement of
religion than legislative prayers, government declaration of the Thanksgiving holiday, “In
God We Trust” on coins, and opening Court sessions with “God save the United States and
this honorable court.” Id. at 693. Justice Brennan remarked:
[S]uch practices as the designation of “In God We Trust” as our national
motto, or the references to God contained in the Pledge of Allegiance
can best be understood . . . as a form of “ceremonial deism,” protected
from Establishment Clause scrutiny chiefly because they have lost
through rote repetition any significant religious content.
Id. at 716–17.
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political community’ every time his fellow Americans recited, as part of their
expression of patriotism and love for country, a phrase he believed to be false.”268
It is troubling that the Seventh Circuit summarily rejected applicable case
law in favor of dicta. Mr. Sherman argued that dicta was not controlling because
“the Court sometimes changes its tune when it confronts a subject directly.”269
While agreeing that this may be so, the Seventh Circuit reasoned that “an inferior
court had best respect what the majority says rather than read between the
lines.”270 Although an inferior court ought to respect dicta, under the policy of
stare decisis, it must certainly show greater deference to the holdings of the high
court.271
3. The Supreme Court’s Recent Jurisprudence
The Ninth Circuit handed down its Newdow opinion in July 2002. In
crafting its opinion, that court had the benefit of ten years of Supreme Court
jurisprudence not available to the Seventh Circuit when it decided Sherman in
1992. In the years following the Sherman decision, the Court addressed various
forms of religious speech in the public school setting.272 In 2000, the Court decided
a challenge to a school district’s policy of allowing student-led, student-initiated
prayer before high school football games.273 The Court applied Lee’s coercion test
along with Allegheny’s endorsement test and Lemon’s government entanglement
analysis.274
In light of the Supreme Court’s continued reliance on all three of its
Establishment Clause tests, it is clearer today than ever that the Sherman Court
erred by failing to apply these tests. Although the court may have acted on the
belief that the Supreme Court would soon overturn Lemon, its misjudgment
resulted in a holding that is entirely inconsistent with precedent.
The holdings of Newdow and Sherman cannot be reconciled because the
circuit courts disagreed about whether “under God” is religious speech and about
which test(s) apply to a Pledge challenge. They disagreed about whether a teacherled pledge coerces or compels student participation and ultimately about whether
recitating the Pledge in public schools contravenes the Establishment Clause. In
light of the confusion, the lengthy interval since the Court last considered the
practice of a teacher-led recitation of the Pledge in public schools, and the intense
public interest in the outcome of the Newdow case, the Court was correct to grant
certiorari to decide whether the present-day Pledge violates the First Amendment’s
Establishement Clause.
268.
269.
270.
271.
272.
273.
274.
Allegheny, 492 U.S. at 672–73 (Kennedy, J., dissenting).
Sherman, 980 F.2d at 447–48.
Id. at 448.
See Dickerson v. United States, 530 U.S. 428, 443 (2000).
See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
Id. at 297–98.
Id. at 302, 306, 309.
2004]
THE PLEDGE OF ALLEGIANCE
409
V. THE FATE OF THE PLEDGE: WHAT SHOULD THE SUPREME
COURT DO?
In Gobitis, the Supreme Court stated: “Certainly the affirmative pursuit of
one’s convictions about the ultimate mystery of the universe and man’s relation to
it is placed beyond the reach of law. Government may not interfere with organized
or individual expression of belief or disbelief.”275 Since the Court delivered these
words sixty-four years ago, it has consistently recognized the individual’s
fundamental right to pursue his or her convictions in matters of conscience.276 In
order to assess the potential harm that reciting the Pledge poses to this fundamental
right, the Court must first determine whether “under God” is religious speech, and
then decide whether a school child offers the speech voluntarily, free from
coercive influences of teachers or peers.277
A. Is “Under God” Religious Speech?
The fate of the Pledge of Allegiance in our public schools may well rest
on the way the Court defines the challenged speech. The Court may classify
“under God” as religious speech or alternatively, like the Sherman Court, find that
it is merely a ceremonial reference to deity.278
Proponents of the Pledge insist that “under God” is not religious speech
when viewed in context of the entire Pledge ceremony. This position suffers from
three faults: (1) history does not support it; (2) it defies logic; and (3) it offends
Americans who value the words because of their religious meaning. Additionally,
social science research demonstrates that children, who arguably recite the Pledge
more than any other group and who are the subject of the current litigation,
understand “under God” as religious speech.279
An examination of the legislative history surrounding the passage of the
1954 Act280 adding the phrase “under God” illustrates that the sole purpose for
adding these words was to distinguish the United States from its ideological
adversary, the Soviet Union.281 The House Judiciary Committee report contained
the following:
Our American Government is founded on the concept of the
individuality and the dignity of the human being. Underlying this
275.
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 593 (1940). In Gobitis, the
Court found that the individual liberty of conscience was limited and could be
circumscribed to protect superior national interests such as national security. Id. at 594–95.
276.
See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 631–35
(1943).
277.
See Lee v. Weisman, 505 U.S. 577, 592–93 (1992).
278.
See Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 446–48 (7th Cir.
1992). In Sherman, the Seventh Circuit suggested that “under God” had lost all religious
meaning and become simply “ceremonial deism.” Id.
279.
Eugene H. Freund & Donna Givner, Schooling, The Pledge Phenomenon and
Social Control, Presented at the 1975 Meetings of the American Educational Research
Association (Mar. 31–Apr. 3, 1975) (available at the University of Arizona Library).
280.
Act of June 14, 1954, 83 Pub.L. No. 396, 68 Stat. 249.
281.
Id.
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concept is the belief that the human person is important because he
was created by God and endowed by Him with certain inalienable
rights . . . . The inclusion of God in our pledge therefore would
further acknowledge the dependence of our people and our
Government upon the moral directions of the Creator. At the same
time it would serve to deny the atheistic and materialistic concepts
of communism with its attendant subservience of the individual.282
Godless communism was perceived as the evil; the remedy that Congress
devised was to instill a sense of moral superiority in U.S. citizens, based on a
national ethic of monotheism.283
The Pledge of Allegiance served as a means for indoctrinating public
school children with these values. President Eisenhower’s statement when he
signed the bill reinforced Congress’ rationale for enacting the bill:
From this day forward the millions of our school children will daily
proclaim in every city and town, every village and rural school
house, the dedication of our nation and our people to the
Almighty . . . . In this somber setting, this law and its effects today
have profound meaning. In this way we are reaffirming the
transcendence of religious faith in America’s heritage and future; in
this way we shall constantly strengthen those spiritual weapons
which forever will be our country’s most powerful resource, in
peace or in war.284
In light of these observations by Congress and the Executive, it is clear that the
purpose for placing the words “under God” in the Pledge was purely religious,
serving to impress upon Pledge participants that national leaders considered “God”
an important figure in American government.285
The second problem with labeling the phrase “under God” in the Pledge
as a mere ceremonial reference to deism in a primarily patriotic exercise is that it
defies logic to do so. As the concurring opinion in Sherman recognized, the
concept of ceremonial deism “selects only religious phrases as losing their
significance through rote repetition.”286 Other words and phrases, such as
“[i]ndivisible” and “liberty and justice for all” retain their significance in spite of
rote repetition.287 The words of the original Pledge are as meaningful today as
when they were penned in the late nineteenth century. Likewise, “under God,”
which was added in 1954, cannot reasonably be said to have lost its intended
meaning. In his concurrence in Sherman, Judge Manion concluded that “[a] court
cannot deem any words to lose their meaning over the passage of time. . . . Each
term used in public ceremony has the meaning intended by the term.”288
282.
Id.
283.
H.R. REP. 83-1693 (1954).
284.
Revised Pledge, supra note 97.
285.
See id.
286.
See Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d. 437, 448 (7th Cir.
1992) (Manion, J., concurring).
287.
Id.
288.
Id.
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THE PLEDGE OF ALLEGIANCE
411
Third, under the theory of ceremonial deism, a civic reference to God
becomes permissible under the First Amendment only after it has been repeated so
often that it is sapped of religious significance.289 Legal scholars have referred to
such civic references as “hollow gestures”290 that are “innocuous and
inconsequential in the grand constitutional scheme.”291 This causes concern as it
admits that a phrase like “under God” violates the Establishment Clause,292 but
suggests that at some arbitrary point the phrase ceases to do so because it loses
“any significant religious content.”293 Under this reasoning, an Establishment
Clause challenge to the Pledge would leave the Court in a position to decide only
whether the Pledge is religious speech or meaningless speech. Proponents of
leaving “under God” in the Pledge would be offended to learn that these words are
constitutional only because they have lost the very meaning they were intended to
convey.
Finally, the present court challenge is limited to the practice of teachers
leading the Pledge in public elementary schools; it does not question the
appropriateness of the Pledge outside of that environment. In prior cases involving
practices in public schools, the Court has taken the age and developmental level of
the affected children into account.294 Here, the Court will have access to an
abundance of relevant research that has attempted to discover how children of
various ages understand the words in the Pledge.295
In the pending Newdow case, qualifying the words of the Pledge may
prove to be the Court’s most difficult challenge. The Court will have to ascertain
whether the Pledge is more like a prayer or Lincoln’s Gettysburg Address, whether
the phrase “under God” constitutes religious speech or purely patriotic speech, and
whether the Pledge is a vow or merely a summary of our nation’s heritage.296
289.
Epstein, supra note 29, at 2088 n.28 (citing Andrew Rotstein, Good Faith?
Religious-Secular Parallelism and the Establishment Clause, 93 COLUM. L. REV. 1763,
1772–73 (1993) (describing references to the deity in the national motto, the judicial
invocation, and the Pledge as “hollow gestures-an accepted part of civic life, with only a
literary or historical connection to theology as such”)).
290.
Id.
291.
See id. at 2089.
292.
See id. at 2088 n.28.
293.
Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (Brennan, J., dissenting).
294.
See, e.g., Lee v. Weisman, 505 U.S. 577 (1992); see also Santa Fe Indep.
Sch. Dist. v. Doe, 530 U.S. 290 (2000).
295.
Freund & Givner, supra note 279 (quoting a first grade student who was
asked about the meaning of “God” in the Pledge: “We better be good cause God is watching
us even if He is invisible.” A kindergarten student commented: “The most important part is
. . . talking about God.”).
296.
See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943).
“‘[L]iberty and justice for all,’ if it must be accepted as descriptive of the present order
rather than an ideal might to some seem an overstatement.” Id. at 634 n.14.
As the present Chief Justice said in dissent in the Gobitis case, the State
may “require teaching by instruction and study of all in our history and
in the structure and organization of our government, including the
guaranties of civil liberty which tend to inspire patriotism and love of
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B. Voluntary, Coerced, or Compelled Speech
While classifying “under God” will be a key component of the Court’s
analysis, that alone may not be sufficient to determine whether teachers may
constitutionally lead public elementary students in reciting the Pledge. When the
Court decided Barnette in 1943, the Pledge did not yet include a reference to
God.297 Still, the Court held that compelling a student to recite it violated the First
Amendment proscription against state interference with freedom of conscience.298
In the two post-Barnette Pledge challenges reaching the circuit courts, the
states argued that students are no longer compelled to participate in the Pledge
because children, regardless of their age, can leave the classroom during the
ceremony.299 The Supreme Court’s school prayer decisions over the last decade
suggest, however, that even government action that falls short of compelling
speech may not withstand an Establishment Clause challenge where children are
involved.300 The Court has recognized that children and adults are inherently
different and that what may not coerce an adult might well coerce a child.301 The
Court seems to be saying that coercion is a function of a student’s age, pressure
from teachers and peers to conform, plus the mandatory nature of attendance in the
elementary and middle school grades.302 The Court’s message is clear—the State
“may no more use social pressure to enforce orthodoxy than it may use other more
direct means.”303
The ultimate question in the Newdow case is whether public school
children can be coerced to profess personal beliefs that are not their own. When
the belief is religious, the answer is “no”; the State cannot coerce a child to take
part or even to maintain respectful silence while peers participate.304 The harder
constitutional question will arise if the Court categorizes the Pledge and the phrase
“under God” as ceremonial reference to diety. While not the same as prayer,
arguably any reference to diety that a child feels compelled to accept as his own
presents a problem under Barnette and the Court’s other Establishment Clause
jurisprudence.
Barnette held that a child cannot be compelled to espouse an idea, even
absent any religious conotation, that is not his own.305 Lee identified children as a
special class, more susceptible to coercive influences than adults, noting that there
are “heightened concerns with protecting [a child’s] freedom of conscience from
country.” Here, however, we are dealing with a compulsion of students
to declare a belief.
Id. at 631 (citation omitted).
297.
Id. at 626 n.2.
298.
See id. at 642.
299.
Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 439 (7th Cir. 1992);
see Newdow v. U.S. Cong., 292 F.3d 597, 608–09 (9th Cir. 2002).
300.
See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 311–12 (2000).
301.
Lee v. Weisman, 505 U.S. 577, 592–93 (1992).
302.
See id.; Santa Fe, 530 U.S. at 311–12.
303.
Lee, 505 U.S. at 594.
304.
See, e.g., id.
305.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
2004]
THE PLEDGE OF ALLEGIANCE
413
coercive pressure . . . .”306 Since the level of pressure necessary to coerce a child
depends in large part on his or her age, it is easier to find an Establishment Clause
violation where teachers lead the Pledge in an elementary school setting. Santa Fe
applied Lee’s coercion test to voluntary, student-initiated prayer at high school
extracurricular events, concluding that even students in their mid to late teens
would feel coerced under these circumstances.307
Combining the alnalyses of Barnett and the school prayer cases leads to
the conclusion that a teacher-led Pledge, in public elementary schools, violates the
Establishment Clause. Although it determined that the Pledge was constitutional in
even the earliest grades, the Sherman Court arrived at that conclusion by denying
the religious nature of “under God.” The court acknowledged that if those words
were construed as religious, the Pledge would be unconstitutional, noting that:
If as Barnette holds no state may require anyone to recite the
Pledge, and if as the prayer cases hold the recitation by a teacher . . .
of unwelcome words is coercion, then the Pledge of Allegiance
becomes unconstitutional under all circumstances, just as no school
may read from a holy scripture at the start of class.308
VI. CONCLUSION
From its inception in the late nineteenth century, the Pledge of Allegiance
and flag salute have maintained two distinct characteristics. First, they have
engendered controversy and division. Second, and perhaps due in part to the
controversy surrounding them, both the Pledge and flag salute ceremony have been
subject to change. Today this tradition of a patriotic exercise, evolving to reflect
shifting societal values, is facing a challenge. The demographic makeup of the
United States is vastly different than it was when Congress last amended the
Pledge in 1954. The Cold War is over and Americans no longer need to distinguish
their cherished values from those they associate with communism. Additionally,
Americans are more diverse in all aspects, including religion. Predictably, some of
those who do not embrace monotheistic ideals object that their children are
required to listen each day as their teachers proclaim that the United States is a
“nation under God.” It is time to amend the Pledge once more to accommodate the
views of all Americans, so that school children are free to participate in an
expression of patriotism without religious overtones.
The Court’s First Amendment jurisprudence, from Barnette through
Santa Fe, has distilled fundamental principles that apply to the current Pledge
challenge. The First Amendment guarantees the freedom to speak and correlating
freedom not to be compelled to speak.309 The Pledge is particularly potent speech
because it requires the participant to espouse a belief.310 The Court has said that
306.
Lee, 505 U.S. at 592.
307.
Santa Fe, 530 U.S. 290.
308.
Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 444 (7th Cir. 1992).
309.
Barnette, 319 U.S. at 634 (“To sustain the compulsory flag salute we are
required to say that a Bill of Rights which guards the individual’s right to speak his own
mind, left it open to public authorities to compel him to utter what is not in his mind.”).
310.
Id. at 633.
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when young children are involved, as was the case in Barnette, the school prayer
cases, and Newdow, the option to remain silent or leave the classroom while peers
participate in an activity that offends the child’s beliefs is inadequate.311
The Court’s three Establishment Clause tests counsel that (1) government
may not endorse one religion over another or religion over non-religion, and (2)
that government must take special care not to coerce vulnerable children. Whether
an activity endorses religion depends on the government’s purpose, the effect of
the activity, and how entangled government becomes with the practice. Leading
young school children in the Pledge may promote the State’s legitimate interest in
fostering patriotism,312 but this would be no less true if the Pledge were restored to
its pre-1954 form. It is difficult to imagine any legitimate secular purpose for the
words “under God” in an already solemn oath. Thus, the Pledge arguably violates
both Lemon and the endorsement test.
Under Lee, the Court will inquire whether the Pledge coerces young
children to participate in religious activity.313 Proponents seem to accept that the
Pledge ceremony is coercive; they argue primarily that the Pledge is not religious.
While it is clear that the Pledge is not a prayer, neither can it be accurately
categorized as non-religious speech. The relevant analysis should address how
young children perceive the Pledge and the words “under God.” Social science
research demonstrates that children in the elementary school grades may very well
construe the Pledge as religious speech.314
In deciding Newdow, the Court should weigh the value of the Pledge, as a
tool for teaching patriotism, against the First Amendment rights of parents to keep
their children free from state coercion to profess a conviction that they do not hold.
Considering the Court’s holdings in the prior Pledge cases, the tests it has
developed and applied to Establishment Clause challenges, and its recognition of
the vulnerable nature of children, consistency requires the Supreme Court declare
unconstitutional the practice of a teacher-led Pledge in public elementary school
classrooms.
311.
Lee, 505 U.S. at 588 (holding prayer at junior high school graduation in
violation of the Establishment clause even though ceremony was not mandatory and student
could have sat down during the prayer while the other students stood. “[S]ubtle coercive
pressures exist and where the student had no real alternative which would have allowed her
to avoid the fact or appearance of participation.”).
312.
Barnette, 319 U.S. at 640.
313.
The Court has expressed concern over a child’s ability to “avoid the fact or
appearance of participation.” Lee, 505 U.S. at 588. Mandatory school attendance laws
require children to attend the elementary grades; proponents of the Pledge argue that a child
can leave the classroom each day during the exercise.
314.
“The children reveal [their] misconceptions about the Pledge. ‘Well, I think
it’s like a prayer to God,’ explains one girl. ‘No, no,’ another attempts to clarify, ‘it’s a
song, that’s all, just a song.’” Seefeldt, I Pledge, supra note 115.